PATTY LOCKHART, PETITIONER V. UNITED STATES OF AMERICA
No. 90-5423
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit
Brief For The United States In Opposition
OPINION BELOW
The judgment order of the court of appeals (Pet. App. A1) is not
reported, but the judgment is noted at 904 F.2d 714 (Table).
JURISDICTION
The judgment of the court of appeals was entered on May 16, 1990.
The petition for a writ of certiorari was filed on August 10, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether the district court violated petitioner's Sixth Amendment
right of confrontation when it limited her cross-examination on the
collateral acts of a government witness to those bearing on his
truthfulness.
STATEMENT
After a jury trial in the United States District Court for the
Southern District of Georgia, petitioner was convicted on one count of
possessing cocaine with intent to distribute it, in violation of 21
U.S.C. 849(a)(1), and one count of conspiring to commit that offense,
in violation of 21 U.S.C. 846. /1/ The district court sentenced her
to 121 months' imprisonment, to be followed by a three-year term of
supervised release. The court of appeals affirmed by judgment order.
Pet. App. A1.
1. The evidence at trial showed that petitione and her husband,
co-defendant John T. Lockhart, conspired during July and August 1988
to distribute crack cocaine out of Satchel's Club, a nightclub in
Augusta, Georgia, owned by John Lockhart. Petitioner and her husband
were arrested in the nightclub on August 5, 1988, while both were in
the process of selling a pound of crack cocaine to undercover agent
Bill Henryhand of the Richmond County Sheriff's Department. That
undercover sale, like previous sales by petitioner's husband to Agent
Henryhand, had been tape-recorded by Henryhand and monitored by other
law enforcement officials. The tapes and Henryhand's testimony
constituted the core of the government's case at trial. The
government also introduced the testimony of Gregory Dickerson, a
bartender at Satchel's Club, who witnessed several crack sales made by
petitioner and her husband in the summer of 1988. Gov't C.A. Br. 4-5.
2. During petitioner's cross-examination of Henryhand she
established that Henryhand was hoping to find employment with another
law enforcement agency, see Gov't C.A. Br. 14-15 n.10, and she
attempted to inquire about several acts of misconduct that had led to
his dismissal from the Sheriff's Department. Defense counsel argued
that the inquiry into the acts of misconduct should be permitted to
show Henryhand's "character or fitness to be a police officer." Gov't
C.A. Br. 11. The government objected, and the court held a hearing on
whether cross-examination should be permitted on those subjects. In
the hearing, defense counsel asked Henryhand about three incidents:
(1) a two-day suspension in May 1988 for personal use of an official
vehicle; (2) Henryhand's false statements to his wife in September
1988 about his 16-day suspension for refusing to take a breathalyzer
test after his gun had accidentally fired; and (3) an off-duty fight
in a bar in October 1988 that ultimately led to Henryhand's dismissal
from the Department.
After the hearing, the district court concluded that the vehicle
incident and the off-duty fight were not sufficiently relevant to
Henryhand's credibility and refused to allow cross-examination on
those incidents. The court, however, permitted cross-examination
regarding the 16-day suspension and Henryhand's false statements to
his wife about that incident. The court began the examination on that
subject before the jury and then offered counsel for the defendants
the opportunity to follow up on the court's questions. Counsel for
both defendants declined the offer. Gov't C.A. Br. at 12-13.
ARGUMENT
Petitioner claims (Pet. 5-6) that by limiting her cross-examination
of Henryhand, the district court violated her Sixth Amendment right of
confrontation. This argument is without merit. The district court
acted well within its discretion under Fed. R. Evid. 608(b) to curtail
petitioner's inquiry into collateral acts of misconduct; /2/ the
court allowed cross-examination on the one issue that had some bearing
upon Henryhand's veracity -- his false statements to his wife. The
Sixth Amendment does not require a district court to allow
cross-examination of a government witness on collateral acts that do
not bear on credibility. Instead, as this Court has explained, "trial
judges retain wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on * * * cross-examination based
on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness' safety, or interrogation that is
repetitive or only marginally relevant." Delaware v. Van Arsdall, 475
U.S. 673, 679 (1986). The district court, having heard the evidence
and found it irrelevant, exercised its sound discretion to determine
the scope of cross-examination. /3/
Petitioner's reliance on Davis v. Alaska, 415 U.S. 308 (1974), is
misplaced. In Davis, the trial court had completely forbidden
cross-examination as to the probationary status of the prosecution's
key witness, even though that status gave the witness a possible
motive to lie in order to avoid revocation of his probation. 415 U.S.
at 311. This Court held that the proposed cross-examination should
have been permitted, because it involved an "attack on the witness'
credibility * * * directed toward revealing possible biases,
prejudices, or ulterior motives of the witness as they relate directly
to issues or pesonalities in the case at hand," and not just "a
general attack on the credibility of (a) witness." 415 U.S. at 316.
/4/
The collateral acts at issue in this case could not have
established any actual or potential "bias" by Henryhand against
petitioner. Rather, as defense counsel acknowledged at trial, those
acts bore only on Henryhand's general character. Henryhand's personal
use of an official vehicle, for example, was not related in any way to
petitioner's case and would have given Henryhand no motivation to lie.
Nor would his untruthfulness to his wife, on which he was
cross-examined before the jury anyway. Even if Henryhand's
termination and desire to get a job with another law-enforcement
agency gave him an incentive to lie -- which a full hearing revealed
it did not -- the jury was told of his job aspirations. There is no
direct relationship between Henryhand's termination and any of the
issues or personalities involved in petitioner's case. Thus, the
district court's decision fell squarely within its discretion under
Rule 608.
Petitioner asserts (Pet. 7-10) that the decision in this case
conflicts with the decision of the Sixth Circuit in United States v.
Garrett, 542 F.2d 23 (6th Cir. 1976). In Garrett, the defendant
wished to show that the officer who arrested him had been subsequently
suspended from the force for using drugs at the time of the arrest.
The district court restricted cross-examination to a few general
questions about the witness's drug use (which he denied) and about his
suspension, without allowing counsel to inquire about the link between
them. The defendant was further impeded by the trial court's refusal
to order the prosecution to make available the officer's personnel
file or to inspect the file in camera to determine if it contained
relevant information. The Sixth Circuit reversed the conviction,
holding that the officer's drug use related directly to the crime with
which Garrett was charged. The court of appeals further found that
the court had unfairly limited the defendant's access to the officer's
personnel file. It concluded that "(t)he defense in case was not
attempting to impeach the testimony of (the officer) by a general
attack on his credibility, but this was an example of a more
particular attack relating to the issues and personalities in the case
at hand as described in Davis v. Alaska." 542 F.2d at 27.
In this case, by contrast, Henryhand's collateral acts were not in
any way related to petitioner's crimes. Moreover, petitioner had
inspected Henryhand's personnel file and had a full opportunity
outside the presence of the jury to cross-examine Henryhand in an
attempt to establish that the incidents had given rise to some
possible bias on Henryhand's part. While petitioner now claims (Pet.
10) that "Henryhand might well have looked upon a successful
prosecution of (petitioner) as a means of being reinstated,"
petitioner was unable to bring out any facts supporting an inference
that Henryhand had any expectation of being reinstated because of his
testimony in this case. Instead, petitioner could establish only that
Henryhand hoped to secure another law enforcement position, a point on
which defense counsel was permitted to cross-examine Henryhand.
In any event, the restrictions on petitioner's cross-examination of
Henryhand could not have prejudiced her. As this Court has made
clear, "the constitutionally improper denial of a defendant's
opportuity to impeach a witness for bias, like other Confrontation
Clause errors, is subject to Chapman (v. California, 386 U.S. 18, 24
(1967)) harmless-error analysis." Van Arsdall, 475 U.S. at 684. In
light of the overwhelming evidence against petitioner, including her
participation in a tape-recorded drug transaction and the testimony of
bartender Dickerson regarding petitioner's other drug transactions at
the nightclub, any error in restricting the cross-examination of
Henryhand would be harmless beyond a reasonable doubt.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
SEAN CONNELLY
Attorney
NOVEMBER 1990
/1/ Petitioner's co-defendant, her husband John T. Lockhart, was
convicted on those and other cocaine distribution charges.
/2/ Rule 608(b) provides that specific instances of a witness's
conduct may not be proved by extrinsic evidence for the purpose of
attacking his credibility but they "may, however, in the discretion of
the court, if probative of truthfulness or untruthfulness, be inquired
into on cross-examination of the witness * * * concerning the witness'
character for truthfulness or untruthfulness * * *."
/3/ Petitioner claims (Pet. 4) that the district court "refused to
allow defense counsel to conduct any cross-examination of Henryhand in
the presence of the jury," but the court expressly gave defense
counsel the opportunity to "follow up" the court's own questions. See
Gov't C.A. Br. 12. Defense counsel indicated that they had no further
questions. Id. at 13.
/4/ This Court has defined "bias" as "a term used in the 'common
law' of evidence to describe the relationship between a party and a
witness which might lead the witness to slant, unconsciously or
otherwise, his testimony in favor of or against a party. Bias may be
induced by a witness' like, dislike, or fear of a party, or by the
witness' self-interest." United States v. Abel, 469 U.S. 45 (1984).